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Crock, Mary; Gibian, Mark --- "Minister for Immigration and Ethnic Affairs v Eshetu" [1998] SydLawRw 19; (1998) 20 (3) Sydney Law Review 457



[*] BA (Hons) LLB (Hons), PhD (Melb), Lecturer, Faculty of Law, University of Sydney.BA (Hons) Student in law, Faculty of Law, University of Sydney

[1] [1997] FCA 603; (1997) 145 ALR 621.

[2] The facts of the case are set out in the judgment of Whitlam J; Id at 643ff.

[3] The United Nations High Commissioner for Refugees (UNHCR) occasionally sends observers into hearings, but such visits are infrequent and rarely result in the observation of a complete refugee determination session. For a description of the Tribunal and its operation, see Fonteyne, J P, “Refugee Determination Procedures in Australia: An Overview” (1994) 6 Int’l J of Refugee L 253 and Crock, M, Immigration and Refugee Law in Australia (1998) at ch12.4.

[4] See Part 5, Division 5 of the Act.

[5] See Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 19; (1997) 142 ALR 474.

[6] See above n1 at 627–28.

[7] Id at 631.

[8] On the legal errors identified by the Full Court, see also the discussion below at Part 4.

[9] (1996) 185 CLR 259.

[10] (1997) 144 ALR 567.

[11] Above n1 at 680.

[12] The Immigration Review Tribunal (IRT) in 1989 and the RRT in July 1993.

[13] The significance of this change was underscored by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, above n9. For discussion of this case, see Huttner, R S, “Judicial Review of Refugee Decisions – The High Court’s Decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang” (1996) 3 Aust J of Admin L 222 and McMillan, J, “Recent Themes in Judicial Review of Executive Action” (1996) 24 FLR 347 at 370–74.

[14] See Migration Reform Act 1992 (Cth).

[15] The Federal Court retains jurisdiction provided by s44 of the Judiciary Act 1903 (Cth) which permits the High Court to remit matters to the Federal Court.

[16] Section 476(3)(d), (e) and (f) of the Act.

[17] For discussion of the content and effect of Part 8, see Crock, M, “Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?” [1996] SydLawRw 14; (1996) 18 Syd LR 267. For judicial consideration of the general structure of judicial review created by Part 8, see Mahboob v Minister for Immigration and Ethnic Affairs [1996] FCA 1319; (1996) 135 ALR 693 per Lehane J; Dai Xing Yao v Minister for Immigration and Ethnic Affairs [1996] FCA 1792; (1996) 46 ALD 273 per Black CJ, Sundberg and Davies JJ; Minister for Immigration and Ethnic Affairs v Ozmanian [1996] FCA 1017; (1996) 141 ALR 322 per Jenkinson, Sackville and Kiefel JJ.

[18] Section 476(1)(e) of the Act.

[19] The arguments raised would be similar to those accepted by the court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100.

[20] See ss5264 of the Act.

[21] See ss424 and 425 of the Act.

[22] These provisions are replicated for the IRT in s353 of the Act.

[23] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Lindgren J, 6 May 1997).

[24] Above n1 at 624 per Davies J; and at 636 per Burchett J.

[25] See R v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 228; Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404; and Kumar v Immigration Review Tribunal [1992] FCA 319; (1992) 36 FCR 544.

[26] Above n1 at 636.

[27] Id at 625.

[28] See the comments of North, J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1998) 151 ALR 505 at 564.

[29] Velmurugu v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 193 at 196; Nurinisa Jit v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Davies J, 15 May 1998).

[30] Nurinisa Jit, id

[31] Above n28 at 548.

[32] Id at 549.

[33] Amarjit Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Mansfield J, 19 August 1997).

[34] Thambythurai v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Finkelstein J, 16 September 1997). Finkelstein J derives the obligation of “acting judicially” from the decision of Deane J in Australian Broadcasting Authority v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366–67.

[35] Id. On the point of failure to rationally consider probative evidence, see Finkelstein J in Epeabaka v Minister for Immigration and Ethnic Affairs [1997] FCA 1413; (1997) 150 ALR 397 at 402.

[36] Ruddock, P, “Proposed Changes to the Administrative Review Scheme”. Speech to the Australian Institute of Administrative Law (Victorian Chapter), Melbourne, 12 November 1997.

[37] Above n5.

[38] Id at 485.

[39] Id at 486–87.

[40] Above n1 at 639.

[41] Above n36 at 547.

[42] See the comments of then Minister Hand, Hansard, House of Representatives, 4 November 1992 at 2621.

[43] Ruddock, above n36.

[44] His Honour said “if ... para 420(2)(b) lays down a procedure, it lays down a requirement of procedural fairness, non-compliance with which is not a ground of review because of para 476(2)(a) of the Act. Again, this suggests that the legislature did not intend para 476(1)(a) to embrace the standard which para 420(2)(b) imposes.”

[45] See the exchange between his Honour and Mr Gotterson QC in Re Minister for Immigration and Multicultural Affairs; Ex parte Ervin, B29/1997, transcript of hearing dated 10 July 1997.

[46] See the judgment of Burchett J, above n1 at 636–39.

[47] (1983) 153 CLR 52 at 116.

[48] See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287–88 per Mason CJ and Deane J.

[49] See Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1997) 143 ALR 55 at 75 per Gaudron and Gummow JJ.

[50] Pearce D C, and Geddes, R S, Statutory Interpretation in Australia (4th edn, 1996) at 128.

[51] Id at 129. See also Winterton, G, “Extra-Constitutional Notions in Australian Constitutional Law” (1986) 16 FLR 223.

[52] See McLachlan, J, “Substantive Fairness: Elephantine Review or a Guiding Concept?” (1991) 2 Public LR 12 at 16.

[53] (1990) 170 CLR 1 at 35–36.

[54] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77. See also Yeats, I, “Findings of Facts: The Role of the Courts” in Richardson, G, and Genn, H (eds) Administrative Law and Government Action: The Courts and Alternative Mechanisms of Review (1994) at 131.

[55] See Minister for Immigration and Ethnic Affairs v Eshetu, Transcript of the High Court of Australia, s83 of 1997, 13 March 1998.

[56] Ibid.

[57] Above n9.

[58] Above n10.

[59] Above n10 at 596.

[60] Above n55.

[61] See section of the Tribunal's findings quoted in the judgment of Davies J, above n1 at 631.

[62] Id at 633.

[63] Above n28 at 562.

[64] Above n1 at 628.

[65] See Pearlman v Keepers and Governors of Harrow School [1978] 3 WLR 736 at 744.

[66] This argument is made by Aronson, M and Dyer, B in Judicial Review of Administrative Action (1996) at 261–62.

[67] Above n9 at 292.

[68] Above n53 at 37.

[69] For persuasive arguments asserting the need to respect tribunal decisions, see Pearce, D, “Judicial Review of Tribunal Decisions – The Need for Restraint” (1981) 12 FLR 167; and Allars, M, “Administrative Law: Neutrality, the Judicial Paradigm and Tribunal Procedure” [1991] SydLawRw 26; (1991) 13 Syd LR 377.

[70] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[71] See Caldwell, J, “Judicial Review: Review on the Merits?” [1995] New Zealand LJ 343 at 343. Jowell and Lester emphasise that Wednesbury unreasonableness seeks to maintain the legality/ merits distinction by precluding review except where the official has behaved absurdly or has “taken leave of their senses”. However, “in practice ... the courts are willing to impugn decision that are far from absurd and indeed often coldly rational”; Jowell, J, and Lester, A, “Beyond Wednesbury: Substantive Principles of Administrative Law” [1987] Public Law 368 at 372.

[72] Id at 163. See also McMillan, above n13 at 377–85.

[73] See the discussion of Pearce, above n69 at 172.

[74] McLachlan, above n52 at 21.

[75] Allan writes that: “It is generally accepted that legal doctrine should not be permitted ... to displace the legitimate autonomy of action vouchsafed to the public authority; but no guidance is given as to how the limits of legal doctrine, and the area of executive freedom, are to be settled in any particular instance”: Allan, T R S, “Pragmatism and Theory in Public Law” (1988) 104 LQR 422 at 428.

[76] In this context see Kanstroom’s analysis of the different meanings of “policy” and “discretion” in Kanstroom, D, “Surrounding the Hole in the Doughnut: Discretion and Deference in US Immigration Law” (1997) 71 Tulane LR 703. See also See Crock, M, “Privative Clauses and the Rule of Law: Administrative Versus Judicial Review Within the Construct of Australian Democracy” Paper delivered at the 1998 Administrative Law Forum, Administrative Law and the Rule of Law: Still Part of the Same Package? Australian Institute of Administrative Law, Melbourne, 18–19 June 1998.

[77] See Johnson, K, “Responding to the Litigation Explosion: The Plain Meaning of Executive Branch Primacy over Immigration” (1993) 71 North Carolina LR 413 at 424. See also Legomsky, S, “Political Asylum and the Theory of Judicial Review” (1989) 73 Minnesota LR 1205 at 1208 and Taylor, S, “The Right to Review in the Australian On-Shore Refugee Status Determination Process: Is it an Adequate Procedural Safeguard Against Refoulement” (1994) 22 FLR 300 at 328.

[78] See Legomsky, Id at 1209–16.

[79] Id at 1210.

[80] Sections 457–470 of the Act.

[81] Ruddock, P, “The Broad Implications of Administrative Law under the Coalition Government with Particular Reference to Migration Matters”, Address to the National Administrative Law Forum, Canberra, 1 May 1997.

[82] See The Canberra Times, 27 December 1996, article and editorial at 14.

[83] See evidence supplied by Mr Mark Sullivan, Deputy Secretary of the Department, to the Senate Legal and Constitutional Legislation Committee. See the Minority Report, Consideration of Migration Legislation Amendment Bill 1997 at 45–46. Note that the setting aside of a Departmental decision by the RRT represents the acceptance that a claimant is a refugee.

[84] It is worth noting at this point that the primary ruling by the RRT in Eshetu was made in late 1995. No suggestion is made that the member in that case did not act independently or in good faith in making her ruling.

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